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Bill C-74

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First Reading

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	Assistance to Inspectors, Investigators and Analysts
Entry	226. An investigator, inspector, analyst or any other person may, while carrying out powers, duties or functions under this Act, enter on and pass through or over private property without being liable for trespass or without the owner of the property having the right to object to that use of the property.
Assistance	227. The owner or the person in charge of a place entered by an inspector, investigator or analyst under section 218 or 220, and every person found in the place, shall
	(a) give the inspector, investigator or ana lyst all reasonable assistance to enable them to carry out duties and functions under this Act; and
	(b) provide the inspector or investigator with such information with respect to the administration of this Act and the regula tions as the inspector or investigator may reasonably require.
Obstruction	228. While an inspector, investigator or analyst is exercising powers or carrying out duties and functions under this Act, no person shall
	(a) knowingly make any false or misleading statement, either orally or in writing, to them; or
	(b) otherwise obstruct or hinder them.
	Forfeiture
Forfeiture on consent	229. (1) Where an inspector has seized any thing under section 220 or subsection 223(1) and the owner or person who was in lawful possession of it at the time of seizure consents in writing at the request of the inspector to the forfeiture of the thing, it is thereupon forfeited to Her Majesty in right of Canada.
Disposal or destruction	(2) The Minister may dispose of or destroy any thing forfeited under subsection (1) and, if the Minister so directs, the costs of the disposal or destruction shall be paid by the owner or the person who was in lawful possession of the thing at the time it was seized.
Forfeiture by order of court	230. (1) Subject to sections 231 and 232, where a person is convicted of an offence under this Act and any thing seized under section 220 or subsection 223(1) is then being detained,
	(a) the thing is, on the conviction and in addition to any punishment imposed for the offence, forfeited to Her Majesty in right of Canada, if the court so directs, in which case
	(i) the Minister may dispose of or destroy the thing, and
	(ii) the costs of the forfeiture and disposal or destruction shall be paid by the offender; or
	(b) the thing shall, on the expiration of the time for taking an appeal from the convic tion or on the final conclusion of the proceedings, as the case may be, be restored to the person from whom it was seized or to any other person entitled to possession of it on such conditions, if any, as may be imposed by order of the court and as, in the opinion of the court, are necessary to avoid the commission of any further offence under this Act.
Things deemed not to have been seized	(2) For the purposes of subsection (1), any thing released from detention under paragraph 223(4)(a) or (b) are deemed not to have been seized under section 220 or subsection 223(1).
Court may order forfeiture	231. Where the owner of any ship, aircraft, platform or other structure has been convicted of an offence under section 272, the convict ing court may, if the ship, aircraft, platform or structure was seized under section 220 or subsection 223(1), in addition to any other penalty imposed, order that the ship, aircraft, platform or structure, or any security given under subsection 222(1), be forfeited, and on the making of such an order the ship, aircraft, platform, structure or security is forfeited to Her Majesty in right of Canada.
Disposal of forfeited ship, aircraft, etc.	232. (1) Where proceedings referred to in subsection 222(2) are instituted within the time therein provided and, at the final conclu sion of those proceedings, any ship, aircraft, platform or other structure or any security given under subsection 222(1) is ordered to be forfeited, it may be disposed of as the Governor in Council directs.
Return of seized ship, etc., where no forfeiture ordered	(2) Where any thing has been seized under section 220 and proceedings referred to in subsection 222(2) are instituted, but the thing is not, at the final conclusion of the proceed ings, ordered to be forfeited, it shall be returned, the proceeds of any sale of the cargo under subsection 221(3) shall be paid or any security given to the Minister under subsec tion 222(1) shall be returned to the person from whom the thing was seized.
Exception	(3) Where, at the conclusion of proceedings referred to in subsection (1), the person from whom the thing was seized is convicted of an offence arising out of a contravention of this Part, the thing and any cargo or the proceeds or security may be retained until the fine is paid or the thing and any cargo may be sold under execution in satisfaction of the fine, or the proceeds realized from the sale of the cargo or the security or any part thereof may be applied in payment of the fine.
Application by person claiming interest	233. (1) Where any thing has been ordered to be forfeited under this Act, any person, other than a person who was a party to the proceedings that resulted in the order, who claims an interest in the thing as owner, mortgagee, lien holder or holder of any other claim under Canadian law may, within 30 days after the thing is ordered to be forfeited, apply by notice in writing to the Federal Court for an order under subsection (5).
Date of hearing	(2) The Federal Court shall fix a day for the hearing of an application made under subsec tion (1).
Notice	(3) An applicant for an order under subsec tion (5) shall, at least 30 days prior to the day fixed under subsection (2) for the hearing of the application, serve a notice of the applica tion and of the hearing on the Minister and on all other persons claiming an interest in the thing that is the subject-matter of the applica tion as owner, mortgagee, lien holder or holder of any other claim under Canadian law of whom the applicant has knowledge.
Notice of intervention	(4) Each person, other than the Minister, who is served with a notice under subsection (3) and who intends to appear at the hearing of the application to which the notice relates shall, at least 10 days prior to the day fixed for the hearing, file a notice of intervention in the Registry of the Federal Court and serve a copy thereof on the Minister and on the applicant.
Order declaring nature and extent of interests	(5) Where, on the hearing of an application under this section, the Federal Court is satisfied that the applicant, or the intervenors, if any, or any of them,
	(a) is innocent of any complicity in any conduct that caused the thing to be subject to forfeiture and of any collusion in relation to any such conduct, and
	(b) exercised all reasonable care in respect of the persons permitted to obtain posses sion and use of the thing so as to be satisfied that it was not likely to be used contrary to the provisions of this Act or, in the case of a mortgagee or lien holder, other than the holder of a maritime lien or statutory right in rem, that the applicant or intervenor exercised such care with respect to the mortgagor or the lien giver,
	those of the applicant and the intervenors in respect of whom the Court is so satisfied are entitled to an order declaring that their inter ests are not affected by the forfeiture and de claring the nature and extent of each of their interests and the priorities among them.
Additional order	(6) Where an order is made under subsec tion (5), the Court may, in addition, order that the thing to which the interests relate be delivered to one or more of the persons found to have an interest therein or that an amount equal to the value of each of the interests so declared be paid to the persons found to have those interests.
	Environmental Protection Compliance Orders
Definition of ``order''	234. For the purposes of sections 235 to 271, ``order'' means an environmental protec tion compliance order issued under section 235.
Order	235. (1) Whenever, during the course of an inspection or a search, an inspector has reasonable grounds to believe that any provi sion of this Act or the regulations has been contravened in the circumstances described in subsection (2) by a person who is continuing the commission of the offence, or that any of those provisions will be contravened in the circumstances described in that subsection, the inspector may issue an environmental protection compliance order directing any person described in subsection (3) to take any of the measures referred to in subsection (4) and, where applicable, subsection (5) that are reasonable in the circumstances and consis tent with public safety and the protection of the environment and public safety, in order to cease or refrain from committing the alleged contravention.
Circumstances	(2) For the purposes of subsection (1), the circumstances in which the alleged contraven tion has been or will be committed are as follows, namely,
	(a) the exportation, importation, manufac ture, transportation, processing or distribu tion of a substance or product containing a substance;
	(b) the possession, storage, use, sale, offer ing for sale, advertisement or disposal of a substance or product containing a sub stance;
	(c) the use of a substance or product containing a substance in a commercial manufacturing or processing activity; or
	(d) an act or omission in relation to or in the absence of a notice, permit, approval, licence, certificate, allowance or other authorization or a term or condition thereof.
Application	(3) Subsection (1) applies to any person who
	(a) owns or has the charge, management or control of the substance or any product containing the substance to which the alleged contravention relates or the proper ty on which the substance or product is located; or
	(b) causes or contributes to the alleged contravention.
Specific measures	(4) For the purposes of subsection (1), an order in relation to an alleged contravention of any provision of this Act or the regulations may specify that the person to whom the order is directed take any of the following measures:
	(a) refrain from the doing of anything in contravention of this Act or the regulations or do anything to comply with this Act or the regulations;
	(b) stop or shut down any activity, work, undertaking or thing for a specified period;
	(c) cease the operation of any activity or any part of a work, undertaking or thing until the inspector is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regula tions;
	(d) move any conveyance to another loca tion including, in the case of a ship, move the ship into port or, in the case of an aircraft, land the aircraft;
	(e) unload or re-load the contents of any conveyance; and
	(f) take any other measure that the inspector considers necessary to facilitate com pliance with the order or protect or restore the environment, including, but not limited to,
	(i) maintaining records on any relevant matter,
	(ii) reporting periodically to the inspec tor, and
	(iii) submitting to the inspector any information, proposal or plan specified by the inspector setting out any action to be taken by the person with respect to the subject-matter of the order.
Additional measures for certain alleged offences	(5) For the purposes of subsection (1), an order in relation to an alleged contravention of section 124 or 125 or any regulations made under section 135 may specify that the person to whom the order is directed, whether that person is not a permit holder or is contraven ing a condition of a permit, take any of the following measures, in addition to any of the measures referred to in subsection (4):
	(a) cease dumping or cease loading a substance; or
	(b) refrain from disposing of any ship, aircraft, platform or structure.
Contents of order	(6) Subject to section 236, an order must be made in writing and must set out
	(a) the names of the persons to whom the order is directed;
	(b) the provision of this Act or the regula tions that is alleged to have been or will be contravened;
	(c) the relevant facts surrounding the al leged contravention;
	(d) the measures to be taken and the manner in which they are to be carried out;
	(e) the period of time within which any measure is to begin and is to be carried out;
	(f) subject to subsection (7), the duration of the order;
	(g) a statement that a request for a review may be made to the Chief Review Officer; and
	(h) the period of time within which a request for a review may be made.
Duration of order	(7) An order may not be issued for a period of more than 180 days.
Exigent circumstances	236. (1) In the case of exigent circum stances, an order may be given orally, but within the period of seven days immediately after it is so given, a written order must be issued in accordance with section 235.
Definition of exigent circumstances	(2) For greater certainty, exigent circum stances include circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 235(6) would result in danger to human life or the environment.
Notice of intent	237. (1) Except in exigent circumstances, the inspector shall, wherever practicable, before issuing an order,
	(a) provide an oral or a written notice of the intent of the inspector to issue the order to every person who will be subject to the order; and
	(b) allow a reasonable opportunity in the circumstances for the person to make oral representations.
Contents of notice of intent	(2) A notice of intent to issue an order shall include
	(a) a statement of the purpose of the notice;
	(b) a reference to the statutory authority under which the order will be issued; and
	(c) a statement that the party notified may make oral representations to the inspector within a period stated in the notice.
Compliance with the order	238. (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of the order or on being directed by an inspector pursuant to an order given orally under section 236, comply with the order.
No bar to proceedings	(2) The issuance of or compliance with an order in respect of a person's alleged con travention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention by that person.
Intervention by inspector	239. (1) Where any person fails to take any measures specified in an order, an inspector may take those measures or cause them to be taken.
Access to property	(2) Any inspector or other person autho rized or required to take any measures under subsection (1) may enter and have access to any place or property and may do such reasonable things as may be necessary in the circumstances.
Personal liability	(3) Any person, other than a person de scribed in subsection 235(3), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized under subsection (1) is not personally liable either civilly or criminal ly in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.
Recovery of reasonable costs and expenses by Her Majesty	240. (1) Her Majesty in right of Canada may recover the costs and expenses of and inciden tal to taking any measures under subsection 239(1) from
	(a) any person referred to in paragraph 235(3)(a); and
	(b) any person referred to in paragraph 235(3)(b) to the extent of the person's negligence in causing or contributing to the alleged contravention.
Reasonably incurred	(2) The costs and expenses referred to in subsection (1) shall only be recovered to the extent that they can be established to have been reasonably incurred in the circum stances.
Joint and several liability	(3) Subject to subsection (4), the persons referred to in subsection (1) are jointly and severally liable for the costs and expenses referred to in that subsection.
Limitation	(4) A person referred to in paragraph 235(3)(b) shall not be held liable under subsection (3) to an extent greater than the extent of the person's negligence in causing or contributing to the alleged contravention.
Procedure	(5) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken therefor in the name of Her Majesty in right of Canada in any court of competent jurisdiction.
Recourse or indemnity	(6) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.

Bill C-74

Assistance to Inspectors, Investigators and Analysts

Forfeiture

Environmental Protection Compliance Orders